Subverting Judiciary – Modi-style

Gopal Subramaniam, an eminent lawyer, is denied place in the apex court of the country by a vengeful government. The episode hints at shape of things to come.

Senior lawyer Ram Jethmalani once said, ” There are two types of judges in India – the ones who know law and the ones who know the Law minister.”

The government has always had a major role in the appointment of judges right through. In 1979 when the then Chief Justice Chandrachud tried to appoint Justice Yashodanand and Justice Chandurkar to the Supreme Court, he was stalled, thanks to stiff opposition from the Centre.

Again G.P.Singh was denied elevation to the Supreme Court as he had earned the wrath of the federal government during his stewardship of the Madhya Pradesh High Court by rejecting some recommendations from the Centre for appointment to that court.Similarly the appointments of Justice P.D.Desai, the then Chief justice of the Himachal Pradesh and Justice Chandwalia , the then Chief justice of Patna High court were torpedoed by the Centre for various reasons.

During the Emergency, in the case questioning the suspension of fundamental rights, four judges fearing Indira Gandhi, ruled in favour of the government, but Justice H.R.Khanna dissented – predictably an enraged Mrs Gandhi denied him the prestigious post of the Chief Justice of the Supreme court, though he was in line for it by virtue of his seniority. Justice Khanna resigned in protest, thus kicking up a furore and embarrassing the Centre no end.

So clean a man that he makes angels look disheveled and dirty,’ wrote Khushwant Singh about Justice Khanna.

Even in recent times, many failed to make it to the Supreme Court because of a hostile Centre, though some did eventually after a few rejections following pressure from the judiciary.

Though the judges are generally appointed by a collegium set up for the purpose, the Law ministry is always consulted. Well of course even if the Law ministry differs with the selection, the decision of the collegium is final. But between 1971 and 1993, it was the Centre that played a dominant role.

It was a time when the collegium couldn’t appoint anyone whose selection was opposed by the government. There was no problem in the appointment of judges when the Janata party was in power. But after the collapse of that government , when Charan Singh was the Prime minister with the support of the Congress, appointments of many judges were rejected.

Justice Jagmohan Lal Sinha

The Congress is known for taking revenge on judges they don’t like. Justice Jaganmohan Lal Sinha of the Allahabad High Court, who declared Indira Gandhi’s election void, didn’t get the opportunity to serve in the higher Court. The same thing happened to Justice Lentin who found Mr.A.R.Antulay , the former chief minister of Maharashtra, guilty of corruption charges.

Mrs Indira Gandhi addressing a public meeting in New Delhi

“On April 25, 1973, a day after the delivery of the judgment in the Fundamental Rights case (Kesavananda Bharati), the Indira Gandhi government, departing from earlier conventions, superseded three of the senior-most judges (who had decided against the government) and appointed A.N. Ray as Chief Justice of India. Justice Ray had decided three major cases in favour of the Central government — though in the minority — namely the Bank Nationalisation case, the Privy Purse case and the Kesavananda Bharati case. The government stand was to appoint “forward looking” judges who shared its philosophy — a euphemism for compliant judges.

“After the declaration of Internal Emergency in June 1975 (as a sequel to the disqualification of Indira Gandhi who lost her election petition and could not obtain a complete stay from the Supreme Court), a calibrated, predetermined attack on judicial independence was organised and implemented. Mass transfers of 16 independent High Court judges, including A.P. Sen, Chinnappa Reddy, B.J. Divan, Sankalchand Sheth, J.R. Vimadalal and P.M. Mukhi, from their parent High Courts were made. Additional Judge U.R. Lalit was not confirmed. Justice S. Rangarajan was transferred to Sikkim because he delivered a judgment in favour of Kuldip Nayar (preventively detained) and a Service Judge R.N. Aggarwal who concurred was reverted as a Sessions Judge (after four years in the Delhi High Court). These were all punitive measures to intimidate independent and fearless judges and undermine their morale,” points out Anil Divan.

Recently Chief justice A.P.Shah of the Delhi High Court ruled that judges too came under the Right to Information act, and so his senior colleagues themselves denied him promotion.

Gopal Subramaniam with some of his colleagues at the Supreme Court

Continuing with such a dubious legacy, the Modi administration has stalled the appointment of senior lawyer Mr. Gopal Subramaniam. Clearly it is taking steps to bring the judiciary under its control, just like Indira Gandhi did during the Emergency.

In a series in the Savukku website, it was noted that Mr. Modi was arrogant, a man of vendetta and would do anything to promote his personal interests. The rejection of Mr.Gopal Subramaniam’s appointment only vindicates such an assessment.

There is no doubt that Mr. Gopal Subramaniam is one of India’s best lawyers. He has worked under Justice Wadhwa of the Supreme Court and also with that reputed lawyer Mr.Solil Sorabhjee Mr.Subramaniam was made a senior lawyer by the Supreme Court at a very young age.

He had worked as the counsel of Justice Verma commission when it looked into the security lapses relating to Rajiv Gandhi’s assassination and for the Venkatasamy commision which looked into Tehelka’s sting operation. He was the Public Prosecutor in the Mumbai blast case. In the 26/11 attacks case he was again the public prosecutor and was able to prevail on the bench into awarding death penalty to Ajmal Kasab.

Apart from his profound knowledge of the law, Subramaniam is also known for his unimpeachable integrity. When a PIL was filed on the illegal detention of people in mental health facilities in Assam, Justice Venkatachalayya and Justice Mohan assigned Subramaniam the task of submitting a report on the situation. Do you know how the judgement of that case starts?

“ We have perused the excellent report submitted by Shri Gopal Subramanium, Senior Advocate. At the outset, we consider it our duty to place on record our deep appreciation of the time and energy spent by Sri Subramaniam in inquiring into the situation. We have no hesitation in accepting the report in its entirety. There is one other aspect which requires immediate attention.

“Shri Subramaniam, though worked in his capacity as Commissioner appointed by this Court, appears to have incurred expenses running to tens of thousands of rupees during the course of his court-assigned work, but all from out of his own pocket. We request him to furnish an account so that at least there could be some restitution of the money spent by him.”

This happened in 1994. Subsequently he was appointed the amicus curiae in many cases by the Supreme court. It was one such case that has cost him now a seat in the august apex court.

He was the amicus curiae in the notorious Sohrabudin Sheikh fake encounter case, and he effectively nailed the Modi government on the issue. How can the then CM and now PM forget or forgive his temerity, his determination to get at the truth.

In his letter to the Chief justice withdrawing his candidature, Subramaniam notes:

” As far as the Rubabbuddin Sheikh case is concerned, I would like you to know the correct facts. I was sitting in the Court waiting for a matter to come up, which was lower down in the list. The Bench consisted of Justices Tarun Chatterjee and Dalveer Bhandari. It was Justice Dalveer Bhandari who along with Justice Tarun Chatterjee requested me to appear as amicus curiae in the matter. I readily accepted the request, which is consistent with the duties of the office of a Law Officer. I found that the petition contained a reference to a letter, which had been written by the Petitioner to the Chief justice of India, sometime ago. I went to the registry, found out the record, and, found that there was also a reply from the Gujarat police, which had certain annexures which indicated the commission of a murder. Therefore, I recommended to the court, in a sealed cover, that a notice might be issued to the State of Gujarat to explain the disappearance of the said Sohrab-uddin. In the first instance, I may add that I also insisted upon the production of Kauserbi by way of an ad-interim writ of habeas corpus at which stage the learned Counsel appearing for the State of Gujarat conceded in the Court that the said Kauserbi had also been killed and cremated. Even then, as a mark of respect for the law and order machinery within the State of Gujarat, requested a Special Investigating Team, headed by Smt. Geeta Johri, to undertake the investigation into the case. It was during the investigation of Ms. Geeta Johri that a critical eyewitness, one Mr. Tulsiram Prajapati. was mysteriously liquidated. Then I pleaded for the transfer of the case to the CBI.”

Amit Shah, the right hand man of Mr.Modi today, was arrested in connection with this case and had to serve a few months behind bars. Only because the courts ordered him to keep away from Gujarat during the trial, Mr.Modi sent him to Uttar Pradesh.

The relationship between Mr.Modi and Mr.Shah is similar to that between Ms.Jayalalitha and Mrs.Sasikala. Has Ms.Jayalalitha ever let down Mrs.Sasikala even if the latter is known to have amassed wealth with or without her knowledge ?

PM Modi and his man Friday Amit Shah

Mr.Modi and Mr.Shah are ideologically close, thick as only committed Hindutvaites could be. In order to make Modi popular if asked to kill a girl he would do it with alacrity, say an Ishrat Jahan, accusing her of plotting to kill Modi. If given Rs. 10 crore and asked to paint Sohrabuddin Shiekh a terrorist and kill him in a fake encounter, he would do it too. If asked to spy on a woman of Mr.Modi’s interests, he would employ the state police to do so 24 hours a day. How will then Mr.Subramaniam, who facilitated the arrest of such a person, be appointed a Supreme Court judge?

Now the information spread by the intelligence bureau and the CBI are similar to tactics of Goebbels. We have earlier seen how the Modi government leaked the IB report about NGOs.

Mr.Modi keeps all his ministers on a tight leash, under his full control, just like Ms. Jayalalitha does. Not that he wants them to remain clean or anything like that – simply to ensure they don’t act against his interests. So in this case too, Mr.Arun Jaitly and Mr.Ravishankar Prasad , friends of Mr.Subramaniam, remain silent spectators in the face of the canards spread by Modi’s propaganada machine. They perfectly know that the allegations against Mr.Gopal Subramaniam are false. But Modi’s minions will not speak out just as none of JJ’s own ever do.

The collegiate system of appointing judges followed in India is not free from shortcomings. Still this system, which has given the nation some of the worst judges, has also produced some of its best. But it is under threat now.

Remember the fate of Special CBI judge JT Utpat, hearing the case of alleged fake-encounter cases of Sohrabuddin Sheikh and Tulsi Prajaptai? A day after he ordered Amit Shah to appear in the court, Utpat was transferred out of Mumbai.

Only the previous week, he had reprimanded Shah’s advocate for filing an exemption application without assigning any reason to it. For his gall out he goes. Clearly the Modi regime is out to subvert the judiciary too, by bringing everyone under its control.

It seems like Mr.Modi will win eventually. People like Justice H.R.Khanna who did not bow down to Indira Gandhi’s wishes, are hard to find now. This is the age of Sadasivams, C.T.Selvams and Karnans, so how can H.R.Khaannas survive?

The so-called Fourth Estate that can stand in the way of Modi’s fascist designs, is looking the other way – if anything some reporters are said to have gleefully acted as the Amit Shahs of the media. Even otherwise servile, it is grovelling even more, feeling intimidated and of course but also eyeing greedily the various favours the federal government can dish out.

It needed an Emergency for Mrs Gandhi to arm-twist the media, but now the Pavlovian drive impels them to crawl and bootlick in sheer fright.

So the ball is squarely in the court of the civil society to check further fascist onslaught in the days to come.

(Translated from the Tamil original by a student volunteer. Thanks a lot friend. May your tribe flourish.)

டைம்ஸ் ஆஃப் இந்தியா நாளேடு நவம்பர் 15 2010 இல் இப்படி செய்தி வெளியிட்டது: “Documents accessed by TOI conclusively establish the SG’s efforts to coordinate between the agencies and the counsel of the telecom minister, whom they were to investigate…”

In the row over Law Ministry’s objections to Gopal Subramaniam’s elevation as Supreme Court judge, many critics of the Modi Government’s actions have alluded to his role as amicus curiae (friend of the court) in the Gujarat fake encounter cases as the actual unstated reason for objection.

Subramaniam also refers to his role in his letter to the CJI wherein he explains how he became amicus curiae in the high profile fake encounter cases. He states:

“I was sitting in Court waiting for a matter, which was lower down in the list. The Bench consisted of Justices Tarun Chatterjee and Dalveer Bhandari. It was Justice Dalveer Bhandari who along with Justice Tarun Chatterjee requested me to appear as amicus curiae in the matter. I readily accepted the request, which is consistent with the duties of the office of a Law Officer.”

He then goes on to say how he found out the record pertaining to the petition for the first time. This implies that the very first time he got to know of the facts, he was already amicus curiae at the request of SC.

The problem, however, is that this version is not borne out from the record of SC. Let us understand what happened.

The brother of Sohrabuddin Sheikh (killed in an encounter in Gujarat) – Rubabbuddin Sheikh – had filed a petition before SC requesting, among other things, a fair and impartial investigation by the CBI. As is the usual norm, the SC issued a notice to the Union of India (i.e., the UPA Government) listed as a respondent in such a petition.

While issuing a notice to the UPA, SC spotted Subramaniam in the court room. It therefore requested him something. What was that? Let us see from SC’s judgement itself in the Rubabbuddin case which describes the history of this case. Below is a screenshot of Paragraph 8 of the SC judgement (which can be read in full here).

Gopal Subramanium’s lofty claims do not add up

If he was asked to be amicus, he does not have to take any instructions from anyone. He was clearly asked to take instructions in this matter from the UPA Government! Subramaniam was the Additional Solicitor General at that time i.e. in 2007.

In his letter to the then Prime Minister in 2013, this is what Arun Jaitley had to say about Subramanium’s coincidental presence in SC when this matter was called out:

“After his [Sohrabuddin] encounter on 24/25-11-2005, his brother [Rubabbuddin] filed a Writ Petition in the Supreme Court. The filing of the said petition was also sponsored by Congress Party. The then Addl. Solicitor General of India, Gopal Subramaniam in a pre-conceived and planned move, appeared on day one before the Court and agreed to take instructions from the Central Government.”

Note that the SC requested him to take instructions from the UPA on January 22, 2007. Till May 17, 2007 at least, for a good 4 months, Subramaniam continued to represent the UPA. How do we know this? Below is a record of counsels appearing for various parties:

Gopal Subramanium’s lofty claims do not add up

In fact, in this very judgment dated May 17, 2007, in paragraph 8, SC notes Subramaniam’s submission that this was a fit case for handing over investigation to CBI. Again, it is critical to bear in mind that he argued this prior to the date of that judgement as the lawyer for UPA, not amicus curiae.

It is only later that Subramaniam became the amicus curiae. The court record shows him listed as amicus curiae for the first time only on August 6, 2007.

A lawyer who has not appeared for any party to the matter can only logically be appointed as amicus curiae. The reason is obvious. Once a lawyer has appeared for a party, a ‘friend of the court’ cannot assist the court without a bias for what he/she has argued earlier for that very party which continues as a party in the matter.

In other words, as UPA’s lawyer, Subramaniam argued that matter should be handed over to the CBI. As amicus curiae, how is he expected to argue anything different?

In his letter to the then Prime Minister (referenced above in this column), Arun Jaitley states something very scathing:

“Subsequently, the Attorney General appeared for the Union of India and Gopal Subramaniam designated himself as Amicus Curiae without any specific order of the court appointing him.”

It is true that there is no written order of SC in this entire matter which appoints Subramaniam as amicus curiae. Therefore, if at all his role as amicus was due to SC, it would be an oral request, indeed after he already appeared for the UPA.

This is something only the judges in question and the individuals present in the courtroom can vouch for. Jaitley, though, is very categorical in his letter, i.e., that it was a designation he bestowed upon himself.

The entire manner in which a senior advocate initially appearing for the UPA went on to become amicus curiae raises several questions. In 2007, UPA was rather obviously gunning for Modi. Having a CBI inquiry into the fake encounter cases could get them some ammunition to go to the very top. This isn’t to suggest that Subramaniam was a part of the UPA’s maneuvers.

However, Subramaniam’s lofty claim that he was requested by SC to be amicus in the initial stage when SC was considering Rubabbuddin’s petition is not borne out by the record.

Is Gopal Subramaniam a Solicitor General of India (SGI) or Saboteur General (SG) of India? He has brought permanent disgrace and infamy to the noble legal profession. He should be made to quit from the exalted Office of the Bar Council of India. Just as a former Chief Justice of Supreme Court of India allowed his official residence to be used as the private Real Estate Business headquarters of his beloved sons, this shameless Solicitor General of India (SG) has used his residence to function as the legal headquarters for protecting the corrupt Union Minister A.Raja in the Case relating to the Himalayan Mega Fraud 2G Spectrum Case pending in the Supreme Court of India. Gopal Subramaniam was the ‘chamcha’ of the most corrupt Former Union Shipping and Transport Minister T.R.Balu. Now he is functioning as the ‘private chamcha’ of the Union Minister A.Raja. Thus Gopal Subramaniam has become the unsought Saboteur General of India (SG) on the one hand and the much sought after Solicitor general of India (SGI) for Union Minister A.Raja.

It has been widely reported in the Press that a meeting of CBI and Enforcement Directorate Officials took place at the Official residence of Gopal Subramaniam the Solicitor General of India on 28th October 2010 to discuss the 2G Spectrum Fraud Case. Anitha Shenoy, the Advocate for A.Raja, was also present, though she had no locus standi to participate at that meeting. This ‘meeting’ was ‘designed’ by the SGI to facilitate Anita Shenoy in the ongoing 2G Spectrum Corruption Case in the Supreme Court. This SGI had summoned CBI’s Investigative Officer Vivek Priyadarshi and DIG S.K.Palsania for that meeting with the hidden purpose of helping Anitha Shenoy and not assisting the Enforcement Agencies of the State like the CBI in effectively conducting the prosecution of the case.

It has been reported in the Press that at this meeting the SGI introduced Anitha Shenoy to the Enforcement Officers. SGI requested these officers to brief Anitha Shenoy. QUITE UNLIKE THE SGI, THE D.I.G. PALSANIA CONDUCTED HIMSELF WITH GREAT DIGNITY, MORAL COURAGE AND HIGH SENSE OF PUBLIC RESPONSIBILITY BY STRONGLY OBJECTING TO THE OPENLY NEFARIOUS AND SHAMEFUL GESTURE OF SG TO SABOTAGE THE DUE LEGAL PROCESS OF CORRECT INVESTIGATION OF THE CASE AGAINST Union Minister A.Raja.

Palsania told the SGI: “We have nothing to do with Raja’s advocate and we are not supposed to talk to her. WE WILL REPORT ONLY TO THE DIRECTOR OF THE CBI AND NOT EVEN TO YOU AND MUCH LESS TO THE PRIVATE ADVOCATE FOR UNION MINISTER RAJA. We cannot be dictated to. We are under no official obligation to report to anybody about the progress of the probe.” Ignoring SGI’s illegal and immoral instructions, these officials then walked out of the meeting.

Immediately thereafter they brought SG’s open interference on behalf of Union Minister A,Raja to the notice of the CBI Director Ashwani Kumar.It has been reported that CBI Director told Union Law (less!)Minister Veerappa Moily: “We demand a new Counsel in the place of this SG. We do not want to entertain Gopal Subramaniam anymore”.

After the controversial meeting on 28-10-2010, the SGI claimed “illness” in order to absent himself from the next hearing at the Supreme Court of India on October 29th 2010. Raja’s advocate Andhyarujina had informed the Supreme Court of the SGI’s “illness”. Mercifully and hopefully for the helpless and battered people of India, the CBI was represented by Additional Solicitor General Harin Raval on that day.

I would like to pay my tribute to D.I.G. PALSANIA for having done his official duty without getting pressurized by the immoral moves of Gopal Subramaniam at the meeting held on 28th October 2010. It was Vineet Agarwal, who was Deputy Inspector General of Police in the CBI, who exposed the corrupt and fraudulent connections of Union Minister A.Raja with Ms Nira Radia. For having done his official duty in a fearless manner, he was transferred from the CBI and posted back to his parent IPS cadre of Maharashtra! Only the firangi memsahib (of course not our ‘Boneless’ Prime Minister or ‘Shadow of Shadow’ Union Home Minister!!)knows what fate awaits D.I.G. Palsania for having done his official duty at the meeting at SG’s residence on 28-10-2010!

THREE CHEERS TO THIS ‘MOST HONOURABLE’ SABOTEUR GENERAL OF INDIA and MOST DISHONOURABLE SOLICITOR GENERAL for MOST HONOURABLE UNION MINISTER A .RAJA! THREE CHEERS TO THE FIRANGI MEMSAHIB AND HER ITALIAN FAMILY FOR THEIR FACILITATING/PARTICIPATING ROLE IN THE HIMALAYAN 2 G SPECTRUM Rs. 1,760,000,000,000/-LOOT OF AND THE LOOT CASE AGAINST RAJA!!! THREE CHEERS TO OUR BONELESS AND MOST HONEST PRIME MINISTER FOR CONTINUING TO SUPPORT THE MOST CORRUPT UNION MISTER A. RAJA ON THE IRREFUTABLE COMMAND OF THE FIRANGI MEMSAHIB, THE MOST EXALTED, THE MOST VENERABLE AND THE MOST VENAL MOTHER SUPERIOR—SUPREME COORDINATOR AND FACILITATOR— OF ALL SCAMS IN THE COLONIAL AND ANTI-NATIONAL UPA II (NON) GOVERNMENT OF INDIA!!!

One Public Interest Litigation(PIL) case in the spectrum scam has been filed by senior advocate Prashant Bhushan, NGO Telecom Watchdog and veteran journalist Paranjoy Guha Thakurta, who have demanded that the Supreme Court monitor the CBI probe. The Court has sent notices to the CBI, ED, Income Tax, Department of Telecom and A Raja in this case. The CBI has invited severe criticism from the apex court for its “slipshod” investigation.Responding to the SGI’s ‘stellar’ performance at his official residence on 28th October 2010, veteran journalist Paranjoy Guha Thakurta has commented thus: “It is a very serious issue. There are powerful people who, on behalf of Raja, are trying to influence the judicial system. If this is true, it is highly condemnable.”

Please see here as to how Gopal Subramanian, Congress Party and Tehelka subverted judiciary in 2002 ! They played tricks to ensure that Justice Venkataswami resigns as the Presiding officer of the Enquiry Commission made to probe defense deals. They did this because the Commission’s report would have gone against their manipulated allegations against George Fernandes.

Former Samata Party chief Jaya Jaitly, who has been accused of accepting money from two tehelka.com journalists posing as arms dealers, has accused the Web site and the Congress party of sabotaging the Justice Venkataswamy commission probe by creating circumstances that forced the judge to resign.

Justice Venkataswami was asked to look into allegations of corruption in defence deals after a sting operation by tehelka caught top politicians and defence officials demanding and accepting bribes on the camera.

Justice Venkataswami tendered his resignation after opposition parties objected to his parallel appointment as the chairman of the Authority on Advance Ruling in Customs and Excise.

Addressing a news conference in New Delhi on Tuesday, Jaitly claimed that a The Times of India report accusing the government of sabotaging the inquiry was incorrect.

“I would like to bring to the notice of the public who these sources are that have spoon-fed information to The Times of India. They (Siddarth Luthra and Siddarth Aggarwal) are lawyers — one represented tehelka before the commission and the other acted on the commission’s behalf. Gopal Subramaniam, senior counsel, brought in Siddarth Aggarwal as one of the commission’s lawyers. This gentleman is an associate in the firm Luthra and Associates, which is owned by Siddharth Luthra and his wife Ketaki,” she said.

Jaitly questioned the wisdom of Gopal Subramaniam bringing in Siddarth Aggarwal as the commission’s lawyer knowing that he worked with Siddarth Luthra, who was representing tehelka.

“Gopal Subramaniam should have disclosed his (Siddarth Aggarwal’s) interest and sought the commission’s consent for his appointment,” she said.

Jaitly claimed she had uncovered the links between the two lawyers by writing to Aggarwal under the fictitious identity of a company interested in buying land for a hospital in Haryana. “I wrote to Aggarwal, but got an answer from Luthra,” she said.

” I have done to tehelka what they did to me,” she said.

Jaitly claimed that she had been working for over two months to trap the lawyers and decided to break her silence after Justice Venkataswami quit the office.

Asked why she sat on the information for more than two months, she said she did not want to be blamed for derailing the commission.

She added that if the commission’s report had gone against her, she could have come out with the information to show how the commission’s report had been manipulated.

Jaitly claimed that Aggarwal had not posed any tough questions to tehelka journalists — Tarun Tejpal, Annirudha Bahal and Samuel Mathew — when they appeared before the commission. He also advised the commission to not go into the source of funding of call girls used in the sting operation.

When contacted, Siddarth Luthra said Aggarwal has not been associated with his firm for two years now.

“I know most of the lawyers working for the commission. Ms Jaitly’s lawyer Niloye Dutta briefed me on certain matters while I was advocating for tehelka.com. My sister Geeta Luthra is representing Ms Jaitly in a land case. I have known Siddarth Aggarwal both as a professional and a friend, but that does not mean that anyone of us has compromised our professional integrity,” he said.